FORTH CROSSING BILL WRITTEN EVIDENCE FROM SCOTTISH NATURAL HERITAGE (SNH)

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1 FORTH CROSSING BILL WRITTEN EVIDENCE FROM SCOTTISH NATURAL HERITAGE (SNH) Thank you for your consultation of 16th November 2009 asking for comments on the Forth Replacement Crossing Bill, the Bill s general principles and the adequacy of accompanying documents at this preliminary stage. The Forth Replacement Crossing project is a major road infrastructure project proposed by Transport Scotland. The project is being driven by uncertainty over the future viability of the existing Forth Road Bridge, and is designed to safeguard this important connection in Scotland s transport network. The proposal comprises a new cable-stayed bridge across the Firth of Forth, to the west of the existing Forth Road Bridge, and associated road infrastructure to the north and south of the bridge. Scottish Natural Heritage (SNH) has been involved in pre-bill submission discussions with Transport Scotland and their consultants Jacobs Arup and we have been a member of the Forth Replacement Crossing (FRC) Environmental Stakeholders Group. A number of detailed environmental reports have been prepared to accompany the Bill, including an Environmental Statement, as well as three reports to inform appropriate assessments; a process required where there are significant effects on European sites designated either as Special Protection Areas or Special Areas of Conservation. SNH is continuing to discuss with Transport Scotland and other consultees, aspects of the process: for example, procedures for assessing any design / construction changes during the tender process, as well as further consideration of mitigation during construction and operation. We welcome the approach that has been taken to date, and the open and constructive manner in which we have been consulted. In order to give our advice clearly, we have split our detailed comments into a number of annexes attached to this letter which include: Annex A: Comments on the Bill, and Explanatory Notes Annex B: Comments on the Environmental Statement Annex C: Comments on the Reports to Inform the Appropriate Assessment: i. River Teith Special Area of Conservation (SAC) ii. Firth of Forth Islands (and Imperial Dock Lock) Special Protection Areas (SPAs) iii. Firth of Forth Special Protection Area (SPA) and Ramsar site Summary of SNH s advice

2 Our advice is that the proposed development: 1. Is likely to have significant effects on the following European designated sites: River Teith Special Area of Conservation (SAC), the Firth of Forth Special Protection Area (SPA), the Forth Islands SPA and the Imperial Dock Lock SPA. In accordance with the Habitats Regulations, the Scottish Ministers are, therefore, required to carry out an appropriate assessment, in view of each site's conservation objectives, to see whether it can be ascertained that the proposal will not adversely affect the integrity of these sites. 2. Will result in the need for licences under Regulation 44 of The Conservation (Natural Habitats, &C.) Regulations 1994, as amended, (the Habitats Regulations) with respect to otters (and possibly bats), which are European Protected Species (EPS). 3. Will impact on two nationally designated Sites of Special Scientific Interest: St Margaret s Marsh SSSI and Ferry Hills SSSI. 4. Will have adverse impacts on protected species in the wider countryside. 5. Will have adverse impacts on habitats within the wider countryside. 6. Will have adverse impacts on landscape character and visual amenity over certain sections of the route. 1. European Designated Sites Although this project is likely to have significant effects on European designated sites (i.e. River Teith SAC, Firth of Forth SPA, Forth Islands SPA and Imperial Dock Lock SPA and), our advice is that adverse effects on integrity of all these sites can be avoided. This view follows detailed consideration of the Reports to Inform an Appropriate Assessment, takes account of the mitigation proposed and recognises that the assessments are based on a worst case scenario. However, we currently do not think there are sufficient mechanisms in the Bill to protect these sites if there are changes during the design and build tender or contract stages. Our view is based on the current proposals. Any changes could result in adverse effects on integrity of one or more of the sites. There is insufficient detailed consideration given within the Bill to this possibility and, therefore, to ensuring that legislative requirements of the Habitats Regulations are met. Therefore, our advice on aspects of the Bill, as it is currently drafted, is that some amendments are required. Please see Annex A for further details and our recommendations. 2. European Protected Species (EPS) The accompanying Environmental Statement has identified that there are requirements to destroy areas of refuge, whether for breeding or shelter, for both

3 otters and bats. A licence is, therefore, required under regulation 44 of the Habitats Regulations. However, our view is that there will be no adverse effects on the favourable conservation status of these species. 3. Sites of Special Scientific Interest (SSSI) The proposed works will impact on two SSSIs, both located on the northern section of the route: Ferry Hills and St Margaret s Marsh. The requirement for the road to pass in close proximity to these sites will result in damage to the notified interests of these sites. However, mitigation has been identified to reduce these impacts. 4. Protected Species On the southern section of the route, the road will require the destruction of badger setts. The destruction of these setts will require a licence to be issued from SNH. Mitigation is proposed to provide artificial setts to replace those that will be destroyed. Sufficient baseline information has been collected for other protected species to allow us to conclude that the proposed mitigation will minimise impacts arising from the construction and operation of the route. 5 & 6. Wider countryside impacts There will also be negative impacts on local biodiversity, landscape and access to the countryside, but we believe that with suitable mitigation these impacts can be reduced to a reasonable level. Iain Rennick Area Manager, Forth and Borders 26 January 2010

4 Annex A Comments on the Forth Crossing Bill General Comments Transport Scotland and their consultants (Jacobs Arup) have produced an Environmental Statement (ES) which identifies impacts, their significance and how they can be avoided, reduced or mitigated to an acceptable level. This is based on a scenario which they believe to be the worst case. In addition, due to the proximity of the Forth Replacement Crossing (FRC) to sites of international nature conservation value, additional reports to inform appropriate assessments have been prepared in accordance with The Conservation (Natural Habitats, &c) Regulations (as amended) 1994, hereafter referred to as the Habitats Regulations. However, the Bill currently lacks a commitment, or the necessary mechanisms, to ensure that the identified means of avoiding, reducing and mitigating impacts will be implemented and can be enforced. This is necessary to guarantee, as required by the legislation, that there will be no adverse effects on the integrity of the Firth of Forth Special Protection Area (SPA) and Ramsar site, Forth Islands SPA, Imperial Dock Lock SPA or River Teith Special Area of Conservation (SAC). Scottish Ministers, as the competent authority under the Habitats Regulations, must satisfy themselves that this commitment and any necessary mechanisms are in place. This is required to ensure that the project, as authorised by Parliament, can be implemented with no worse effects than that assessed within the accompanying Environmental Statement or Reports to Inform an Appropriate Assessment. Part 1 - Works Sections 2 and 3 These sections of the Bill provide the details on the bridge dimensions, in terms of the minimum headroom for shipping navigation and also the dimensions of the bridge and span distances between the towers. We note there are minor variations in these dimensions between the various accompanying documents that we have received. For clarity, a final agreed list of dimensions should be reflected in the Bill. Section 7 This section details the construction and dredging operations that will be authorised if the Bill is approved. It is our understanding that the disposal of material arising from these dredging operations (and any future maintenance dredging) will require a FEPA licence from Marine Scotland, in addition to any consent in the Bill itself. This separate licensing procedure will also require assessment under the Habitats Regulations by Marine Scotland, as the competent authority. The forthcoming Marine Bill may also require licensing by Marine Scotland for the dredging activities themselves, as well as for the disposal

5 of dredgings. The Bill, therefore, needs to clarify the relationship between consent given by the Bill itself and any additional licensing consents which may be required. Please also see our comments on this aspect under Part 9 - Environmental Matters. Section 10 Trees and Shrubs Similarly, section 10 sets out how the construction and maintenance will affect trees and shrubs. Trees and shrubs can be valuable habitats providing shelter for a variety of species. Bats (European Protected Species) use mature deciduous trees for shelter at various times of the year. It is, therefore, important that consideration is given to the requirements of Regulation 44 of the Habitats Regulations. Where there is a possibility that bats may be disturbed by such works then a licence must be applied for from the Scottish Government. One way that this could be realised in the Bill is through reference to the production and approval of a species management plan for bats. See also our comments below under Part 9 - Environmental Matters. Part 9 - Environmental Matters We consider that this part of the Bill (of greatest interest to SNH) does not currently provide the commitment or mechanisms to ensure that the principle of the ES (i.e. assessing a worst case scenario) is endorsed within the Bill. If enacted as currently drafted, the Bill could result in the delivery of a project with impacts worse than those already identified. Considerable effort and discussions have taken place with Transport Scotland and the other statutory consultees to identify means of working which would result in no worse impacts than those assessed during the Bill process and the accompanying Environmental reports. This needs to be reflected in the Bill. Section 66 Mitigation of Environmental Impact Currently this section refers only to what is reasonably practicable to ensure that the development consented and built would be no worse than the residual impact identified in the accompanying Environmental Reports to this Bill. We consider that this does not provide a satisfactory mechanism for enforcement, or provide sufficient procedures to be followed in the light of any changes to the construction, design or operation of the Forth Crossing where it differs from what has currently been assessed. With respect to previous Bills for large scale infrastructure projects, our advice has been that the construction and operation of the project requires to be managed so that the impact upon the natural heritage is reduced as far as possible. The aim must be that the agreed mitigation will be implemented and that the duties and obligations incumbent upon the Promoter are in turn, binding upon contractors, subcontractors and the operator. The fact that the Forth Crossing will impact on European designated sites (SPAs and SAC) requires further consideration to ensure that the Bill reflects the

6 obligations of the Habitats Regulations on the promoter, contractors and future operator. This has been given some further consideration by Transport Scotland and at a meeting in early January 2010 we were provided with the following document: Procedure for Demonstrating Compliance with the Habitats Regulations and EIA Regulations. This document has been drafted to provide a procedure to ensure that, if the Bill is consented, there is a mechanism to ensure that any design or construction variations are considered to see whether further detailed assessment of environmental impacts is required. We request, therefore, that Part 9 of the Bill specifically mentions this procedure and makes it binding on the promoter, potential contractors and operators. This procedure will ensure that there is a mechanism which can be enforced to review any changes to the design/ construction/ operation of the Forth Crossing after an Act is passed. It will also ensure that, if necessary, the Competent Authority (Scottish Ministers) will undertake an appropriate assessment in respect of any likely significant impacts to European designated sites (Natura 2000) arising from any changes. Code of Construction Practice We note the Code of Construction Practice is specifically mentioned within the Bill, and welcome our ongoing involvement in the development of this key document. We note, however, that there is no specific mention of other plans that we would consider as being vital to the delivery of mitigation and reduction of impacts to the natural heritage. Our recommendation for plans to be included within the Bill is: Environmental Management Plan Species Management Plans (otter, bats, badgers) St Margaret s Marsh SSSI Management Plan Landscape Management Plan Aesthetics Memorandum including a Design Handbook Environmental Clerk of Works (an independent team comprising a number of specialists to oversee the work of the contractors to ensure the commitments within the ES and contract documents are adhered to) Conclusion We are happy to continue to work with Transport Scotland and the Committee in developing these mechanisms. We advise that The Scottish Parliament should not approve the Bill unless it is content that these mechanisms are in place and are enforceable.

7 To conclude, our advice is that consent could be granted if the Bill was modified to take account of the recommendations proposed in this letter. In the event that the Committee chooses not to proceed with these amendments or that they are withdrawn by the promoter, the Scottish Ministers should be notified of the risk that this could result in the Scottish and UK Governments not meeting their obligations under European Law.

8 Annex B Comments on the accompanying Environmental Statement to the Forth Crossing Bill 1. European Protected Species Certain species are listed on Annex IV of the Habitats Directive as species of European Community interest and in need of strict protection. The protective measures required are outlined in Articles 12 to 16 of the Directive. The species listed on Annex IV whose natural range includes any area in Great Britain are called European Protected Species (EPS). In Scotland, protection for EPS is provided through the Habitats Regulations 1994 (as amended) with the EPS listed on Schedules 2 (animals) and 4 (plants). SNH is the statutory nature conservation body which provides advice on EPS in respect of the Habitats Regulations. Licences may be given to authorise activities which could affect EPS and which would otherwise be illegal. The licences are issued only under very strict conditions, either by Scottish Government or by SNH depending on the reasons for the licence request. Scottish Government produced interim guidance for local authorities in 2001 on how to deal with planning proposals where EPS are present. This guidance is also relevant to other types of development and can be viewed on the Scottish Government website. 1.1 Otters The ES identifies the potential need for a licence due to the destruction of an otter lying up area in the environs of Niddry Burn. In order to secure the mitigation required for otters, at both this site and across the entire scheme, we would recommend that provision of an Otter Species Management Plan outlining the consideration of further survey requirements, implementation of mitigation during the advance works, construction and operation of the scheme including any maintenance issues. 1.2 Bats The ES does not identify any need to destroy any bat roosts. We would recommend that the Bill requires further survey work to be undertaken prior to the commencement of works to ensure that up to date surveys are used to inform the mitigation and the provision of a Bat Species Management Plan. The species management plans should provide greater detail than that currently provided in the ES and Code of Construction Practice on the practical implementation of mitigation for contractors, subcontractors and operators of the Scheme, if the Bill is assented.

9 2. Sites of Special Scientific Interest 2.1 Ferry Hills SSSI and Geological Conservation Review (GCR) Site Ferry Hills SSSI is made up of five separate locations consisting of the existing extensive road cuttings, a railway cutting, a small disused quarry to the north (Fairy Kirk Quarry) and a grassland hilltop to the south. Ferry Hills SSSI is noted for its geology and unimproved grassland. The extensive road cuttings along the A90, north of the Forth Road Bridge provide excellent and accessible exposures of the Late Carboniferous age Midland Valley Sill-complex which underlies much of the central Midland Valley of Scotland. Three areas of the SSSI/GCR site will be affected. Two of these are associated with side road construction or widening, and one with rock cutting for landscape mitigation. The widening of the road at two locations will affect the middle two sections of the SSSI: In the vicinity of chainage 7600, southwest of Jamestown; and in the vicinity of chainage 8300 at Hope Street Cemetery. These sections encompass rock cuttings associated with the existing Forth Road Bridge. The drawings and text indicate that there will be re-profiling and that this will include the removal of rock stabilising mesh followed by excavation using blasting or other excavation techniques. However, we note in Section of the ES that as the detailed design is developed there may be an opportunity to shift the scheme westward which may allow this rock cutting to be avoided or reduced. The potential for a westward shift of the proposed scheme alignment to avoid excavation of rock from the existing cuttings in the SSSI would be welcome and may be preferable to re-profiling. However, excavation work on the faces does offer the opportunity for the creation of stable more natural-looking faces, free of rock mesh, that are accessible for research. Re-profiling in the vicinity of chainages 7600 and 8300 would lead to the removal of rock exposure. For SSSI/GCR sites of this type where the geological resource is fairly extensive in nature, rock excavation and removal is not of major concern. However, in order to maintain the integrity of the site the remaining faces should be left exposed in a stable accessible condition and should not be obscured by wire mesh or other retaining structures. In addition, to ensure that new rock faces remain visible and accessible for research purposes they should not be planted upon. There may however be opportunities to plant on stepped rock faces outwith the SSSI for landscaping purposes. At chainage 7600 the reduction in height of the available observable exposure gives some cause for concern in that it will remove the higher outcrops of the sill where chilling of the intrusion may be demonstrated. However, this feature will be

10 demonstrated in other areas of the GCR site and the loss of the top part of the sill at this point would be offset by the creation of new exposures at this location at different levels within the sill intrusion, which may benefit the overall interest of the site. East of chainage 7200 rock cutting at the northern end of the southern most section of the SSSI is proposed to promote natural appearance and natural regeneration. There is no cross section corresponding to this point in Figures 12.4 and 12.5 and therefore it is difficult to determine the extent of the cutting proposed. However, it is likely to have a similar impact to the cutting and works proposed at chainage 7600 and so may not be damaging to the interest feature of the site provided the conditions concerning the provision of stable and accessible faces is adhered to - this requires clarification. For landscape mitigation purposes it would appear that a rock cut is proposed at the northern end of the southern most section of the SSSI, east of chainage 7200 (Figure 12.4c). There does not appear to be any further information on the work proposed at this location in the submission provided again clarification is required Research opportunities The creation of excavated cuts into rock, both within and outside the SSSI that have not been previously exposed, is likely to be of interest to the British Geological Survey (BGS) and wider geological community. It is recommended that the BGS be kept informed of the programme of works where the excavation of rock cuts is being planned and executed to provide opportunities for data collection and research. Additionally there should be consideration of the permanent retention of rock exposed during excavation work that occurs outside the SSSI, particularly to the east and west of the bridge route at chainage 7000 to St Margaret s Marsh SSSI St Margaret s Marsh SSSI, located on the northern shore of the Firth of Forth at Rosyth, comprises an area of reedbed and saltmarsh situated immediately above the high water mark. The southern boundary is the seawall, to the west is Rosyth dockyard, on the northern boundary is a railway line and a sewage works, and the eastern boundary is formed by a steep bank leading up to the B981. The 15.6 ha reedbed is the largest coastal reedbed in the Firth of Forth and one of the largest reedbeds in Fife. This habitat occurs in two distinct patches divided by a bund running north to south through the centre of the site. Located on the south east boundary of the SSSI, the 2.3 ha saltmarsh forms less than 1% of the Firth of Forth s total saltmarsh habitat but shows a good range of transition communities. The remaining areas are dominated by scrub vegetation with a good variety of common breeding birds.

11 There is a recognised ongoing issue at St Margaret s Marsh in relation to nutrient input to the marsh with concerns that increased nutrient loading is occurring. St Margaret s Marsh is also drying out and the homogenous stands of reed are probably spreading into the salt marsh. There is currently insufficient standing water within the reedbed for a variety of historic reasons. Borehole information requested to assess the level of nutrient input into the marsh, its salinity and water levels has not yet been completed. Once these surveys have been completed and reportsmade available, these will be used to inform the long term management and mitigation required. The information within the ES identifies the loss of reedbed habitat, due to realignment of the B981, as less than 1ha. Most of this loss is at the edge of the reedbed, mainly consisting of scrub vegetation. The salt marsh area is unaffected by the proposal. In mitigation for the loss of reedbed habitat, it is proposed that management of the marsh water table, and hopefully control of nutrient input, will compensate through the expansion of wetland habitat and improvement in quality. Section of the ES, indicates that the new road infrastructure will reduce the marshes catchment by up to 25%. In order to mitigate for this, section details how the catchment severance will be reduced. Following the completion of the B981 roadway, cross drainage will be provided to hydrologically link the marsh with upper and lower proportions of the marsh. With all mitigation in place it is estimated that the proposal will result in a decrease of 7% of the surface water drainage into the marsh. We have not seen the catchment calculations; however we would suggest that this small predicted reduction in flow to the SSSI will further exacerbate the drying out of the site. Raising and maintaining water levels within the marsh is a crucial part of any mitigation and must form part of the proposed management plan. The key to mitigation is securing the ingress of more water from the sea. We would also recommend that the culverts installed to allow flow beneath the B981 are set above the current ground level to retain further water in the catchment. This will not impede flow but will create storage capacity within the wet ground on the north side of the road. As a minor compensatory measure the SUDS design should include some baseline water retention, to encourage the colonisation by wetland plants to improve water treatment and provide some biodiversity benefit. Proposals to plant scrub in the catchment will further increase the evapotranspirational loss from the catchment. Additionally there is sufficient existing scrub and woodland habitat in the area. Therefore compensatory grassland would be a more appropriate form of mitigation.

12 Giant hogweed grows at St Margaret s Marsh. Suitable provision is made in the ES to ensure propagules are not transferred by contractors working on the project. It is also recommended that the giant hogweed is eradicated as part of the long term management of the SSSI. Despite a small loss in reedbed area, the opportunity for improving the long-term condition of the site is commensurate with that loss. Measures suggested in the ES are sufficient to protect the site during construction and operation. The delivery of these measures must be secured through agreement of a long term management plan for St Margaret s Marsh SSSI. SNH will continue to work with Transport Scotland, their consultants and any future contractor to help inform mitigation and future long term management of this site. 3. Protected Species and Habitats We note that section of the ES identifies the areas where greatest disturbance to badgers will occur, and also identifies the likely requirement to destroy badger setts. This activity will require a licence from SNH under the Protection of Badgers Act We would recommend that given the considerable time period between the baseline survey work which has been carried out to inform the ES and the start of development there is likely to be a requirement to update this survey work. We would also recommend the Production of a Badger Species Management Plan which can inform the contractor, subcontractors and operators of the provision and implementation of mitigation for badgers at a detailed level. 4. Landscape and Visual Impact In general, SNH welcomes the process to identify and mitigate the landscape and visual impacts of the proposed scheme. However we would like to draw your attention to the following: Details on landscape and visual sensitivity and some potential and residual landscape and visual impacts are considered brief for a scheme of this nature. We note that the details of many of the infrastructure and mitigation elements of the scheme are yet to be provided, due to the design and build process. It has therefore not been possible to accurately assess the potential landscape and visual impacts arising from the introduction of such elements. The predicted moderate and substantial landscape and visual impacts of the scheme are noted. Although reasonable effort has been made to mitigate these, the lack of design detail for some features and the potential significant residual impacts remain a concern. To help ensure effective delivery of the scheme design and mitigation objectives, we recommend the production of a Design Handbook as part of the Aesthetics Memorandum. We would welcome the opportunity for input to these documents to help ensure that the best possible designs are delivered.

13 The identification of potential impacts arising from the three main elements of the scheme (northern approach, southern approach and main crossing) covers all the relevant issues as a basis for examination of mitigation potential. However, as stated in the ES, section , many of the potential impacts centre on the introduction of infrastructure elements such as noise barriers, cuttings, viaducts, bridges, gantries and lighting. As the detail of these intrusive features will be stated within the Aesthetics Memorandum of the contract documents, it is not possible to fully understand the nature of landscape and visual impact at this stage. In order to effectively deliver the stated environmental objectives of the scheme, it is recommended that a Design Handbook is produced as part of this process. SNH would welcome involvement in this process. Where noise barriers are proposed as part of noise attenuation, the location and design of these could potentially result in significant visual intrusion and adverse landscape impacts. Standard designs utilising materials such as concrete are likely to be inappropriate for this scheme. It is therefore essential that their design is sympathetic to both road users and local communities and that the local character is carefully considered and implementation is of a high specification. The potential for utilising green materials such as willow and incorporating planting on both sides of the barrier should be considered. Additionally, further consideration will need to be given to softening their visual impact through techniques such as variations in alignment and colour treatment. The strategy to protect existing trees and vegetation appears to have been implemented where possible. Where planting is proposed to screen and integrate intrusive features and to enhance the setting of road corridors, this is considered appropriate in extent and broad design. However, it should be noted that this is constrained to some extent by the relatively narrow application boundary. Where site-specific mitigation is proposed, this appears to complement existing local landscape character. SNH welcomes this approach to help integrate the scheme into the local context. Before any construction commences, it is essential that further landscape details are agreed to help ensure that impacts are minimised as far as practically possible. SNH would be happy to assist in this process. In addition to the design issues of rock cuttings and noise fencing, details on the following will also need to be developed: Proposed finished levels of earthworks. Permanent fencing designs. Detailed planting plans. Details on hedgerow integration and stonewall restoration. Details on bridge/viaduct designs, junctions and gyratory, gantries and lighting will also require further consideration. Again, SNH would be happy to assist with this process. Where parts of the existing A904 are to be decommissioned, further

14 details will be required to ensure effective and appropriate restoration takes place. It is recognised that the introduction of the proposed main crossing is intended to be an iconic feature and that aesthetics are a major consideration. As such, taking into account the design and associated process, the proposed bridge structure needs to compliment existing crossings and deliver a detailed design and specification standard befitting of the nationally important landscape context. It is noted that the construction of the bridge will result in significant landscape and visual impacts. We note concerns regarding the negative moderate and substantial impacts on the foreshores due to the scale of the infrastructure, loss of woodland, hedgerows and mature trees. The introduction of noise fencing could potentially increase local landscape and visual impacts. As mentioned elsewhere, we consider further work should be undertaken to ensure that specifications secure best practice in design and mitigation of such features. The main issues of concern relating to residual impact which pose permanent moderate or substantial impacts (year 15) are: Northern section Castlandhill Landscape Character Area (LCA) introduction of new cutting and embankment, slip road and gyratory; North Queensferry introduction of A90 and viaduct, embankments and gantries; Coastal Hills cuttings, noise and mature woodland loss. Southern section South Queensferry introduction of junction and embankments, realignment of B924 and traffic diversions; Duddingston introduction of cuttings, noise barriers, realignments, bridge, junctions and access roads; Dundas introduction of embankments, noise barriers, A90, and gantries. Visual Impacts It is noted that mitigation of visual impact has been considered within the Landscape chapter of the ES. The following measures are welcomed as appropriate strategies in helping to mitigate intrusive elements of the scheme: high standard of aesthetics for the proposed scheme, particularly the sensitive design of the Main Crossing to avoid visual confusion and complement views of the Forth Road Bridge and Forth Rail Bridge; integration of the alignment and earthworks with the surrounding topography; formation of new rock cuttings to achieve a natural appearance; provision of false cuttings and noise barriers to screen or restrict views of the road;

15 provision of stone walls, hedges and standard trees to provide screening and reinstate field boundaries; and planting mixed or scrub woodland to screen views, integrate new cuttings and embankments and reflect the character of the existing landscape. The principle to limit lighting and gantries to where safety considerations dictate is welcomed. The input of specialist aesthetic consultants for the main structure has resulted in a design of acceptable form and scale. The issue of outstanding detailed design considerations (as stated within the landscape chapter) are also relevant for visual issues. The construction phase will be particularly intrusive for local residents and recreational users of the surrounding area. The proposed measures for mitigation of landscape and visual impacts as described in the Code of Construction Practice (CoCP) and associated preparation of a Landscape Management Plan (LMP) are considered sufficient in scope. SNH welcomes the opportunity to be comment on the content of LMP. As stated in paragraph , the establishment of any planting as early as practical is essential to help reduce any shorter-term impacts. The effective management of compounds and associated storage of materials is important in reducing any localised impact of the construction phase. The LMP will need to detail the restoration of these sites back to appropriate uses and quality. We welcome the Schedule of Environmental Commitments. However we reiterate our concerns over the lack of detail. In taking these commitments forward, we strongly advise that further details, as requested in this response, are provided. Furthermore, we recommend clarification on how the detail and quality standards of mitigation measures will be translated into scheme construction, including how the Schedule of Environmental Commitments will be legally secured into the Design and Build contract. We will be happy to continue to work with Transport Scotland and their landscape consultants to develop and implement the Landscape Management Plan.

16 Annex C Habitats Regulations Appraisal Reports to Inform Appropriate Assessments 1. Habitats Regulations Appraisal Where a plan or project could affect a Natura site, the Habitats Regulations require the competent authority to undertake a Habitats Regulations Appraisal (HRA). HRA applies to any plan or project which has the potential to directly or indirectly affect a Natura site. This may therefore include proposals at some distance from the designated site, particularly in the case of river or marine sites, or sites containing migratory species such as birds or fish. HRA refers to the whole process as set out by the Habitats Regulations, including appropriate assessment, if required (this step is defined in regulation 48). Appropriate assessment is required when a plan or project affecting a Natura site: Is not connected with management of the site for nature conservation, and Is likely to have a significant effect on the site (either alone or in combination with other plans or projects). Appropriate assessment focuses exclusively on the qualifying interests of the Natura site affected and must consider any impacts on the conservation objectives of the site. The applicant is usually required to provide the information to inform the assessment. This annex provides our advice on the information provided by Transport Scotland in the following reports: Report to Inform an Appropriate Assessment (RIAA), River Teith Special Area of Conservation (SAC), (November 2009). Report to Inform an Appropriate Assessment, Firth of Forth Special Protection Area (SPA), (November 2009). Report to Inform an Appropriate Assessment, Forth Islands SPA and Imperial Dock Lock SPA, (November 2009). 2. General Comments As outlined in Annex A above, although there is reference to the Environmental Statement in the Bill, there is no reference to the Habitats Regulations or appropriate assessment of the proposal. Part 9 of the Bill does not reflect the test in the Habitats Regulations which requires that it must be ascertained that the integrity of all the Natura sites will not be adversely affected (if this is the conclusion of the appropriate assessment). Therefore, the Bill must be amended

17 to ensure that the mitigation identified within the RIAA documents and the appropriate assessment is legally enforceable, as well as ensuring any changes to the design, construction or operation or the Forth Crossing are re-evaluated to ensure that they are no worse than the impacts already assessed. Prior to the submission of the Bill, we have provided significant advice in relation to the consideration of impacts on these European designated sites and the requirements of the Habitats Regulations. We have also identified that there is inconsistent use of the correct Natura terminology within and between each of the documents. It is recommended that the terminology used should consistently and accurately reflect the wording and the requirements of the Regulations to avoid potential for confusion. For example, the use of the phrase significant adverse effect confuses the two separate steps in the Habitats Regulations of likely significant effect and adverse effect on site integrity. Also, in terms of guidance available to help inform the process, reference is made to a document that is no longer recommended - the 2002 EC guidance. We would not recommend this guidance as it places undue emphasis on determination of likely significant effect and this may not be compliant with recent European case law judgments. 3. River Teith SAC The RIAA correctly identifies that the River Teith SAC is located exclusively within freshwater stretches of the River Teith. Only those species designated within the River Teith SAC that migrate through the Firth of Forth are at risk of adverse impact. The qualifying interests that therefore need to be considered further are: Atlantic salmon, river lamprey and sea lamprey. This report still makes reference to freshwater pearl mussel (section 3 and 9.5). As outlined in our previous comments this is not a qualifying interest of the SAC and should be discussed within the ES rather than within the RIAA reports. The appraisal we carried out considered the impact of the proposals on the following factors and how they might relate to the migration and movement of Atlantic salmon, river and lamprey species: Noise and vibration form pile drilling, pile driving and rock blasting Hydrodynamic alteration Sediment release New structures within the water course Pollution In our view the Forth Crossing is likely to have a significant effect on the qualifying interests of the site. As a consequence Scottish Ministers are required to undertake an appropriate assessment in view of the site s conservation objectives for its qualifying interest(s). We would further advise that,

18 in our view, based on the Report to inform the Appropriate Assessment on the River Teith SAC (November 2009) and our appraisal of this report, if the proposal is undertaken strictly in accordance with the ES then the proposal will not adversely affect the integrity of the site, with the exception of one operation where it has not been clearly demonstrated that there will be no adverse effect on integrity (see below). In addition to the above issues consideration has also been given to construction traffic and timing. These impacts solely relate to the main crossing as all other aspects of the Scheme have previously been considered and it was concluded that there is likely to be no significant effect from the southern and northern approaches on the River Teith SAC. Atlantic salmon and lamprey species inhabiting the Firth of Forth are adapted to negotiating turbid waters with changeable currents, tides and climatic conditions. Most of the effects of the proposals will be temporary in nature and restricted to limited areas of the estuary at any one time. The RIAA assesses all of the impacts listed above and concludes that, with the recommended mitigation measures in place, there will be no adverse effect on the integrity of the site. We do note that some of the data used to reached these conclusions was somewhat sparse. In some cases there were no additional data, in other cases further data could have been obtained, e.g. Marine Scotland could have been approached for additional data in relation to Atlantic salmon numbers (3.2.7) and further data on Dissolved Oxygen, Turbidity and Suspended Solids for the years should have been sourced (2.3). Not withstanding this, we agree with this conclusion except in relation to the disposal of dredgings at an unspecified disposal site (although it seems likely that Oxcars would be used). No spatial or temporal quantification of the sediment plume created by the disposal of dredgings has been attempted (sections ) and therefore the conclusion reached is unsubstantiated. We consider that this assessment should be possible, even given the uncertainties over the site option. We also consider that it will probably be possible to reach a conclusion of no adverse effect on integrity, but the RIAA as it stands does not allow this conclusion to be safely reached, particularly with respect to cumulative impacts. This further assessment need not be immensely detailed but should simply demonstrate that, taking into account: the scale and timing of the proposed disposal operations; the scale and timing of the resulting sediment release; existing dredging disposal activities; existing estuarine conditions; the scale of the Firth of Forth at the preferred disposal site; and the adaptability of salmon and lampreys to turbid estuarine conditions;

19 the migration of these fish species would not be disrupted to an extent that would be considered an adverse effect on the integrity of the site. The Scottish Ministers may therefore wish to carry out further appraisal before completing the appropriate assessment. Please note that section which suggests that SNH have previously advised that current routine dredging operations are unlikely to be having a significant effect on the Natura 2000 sites associated with the Firth of Forth. is not relevant to this current appropriate assessment of the River Teith SAC. Our previous comments were only in relation to the Firth of Forth SPA and Forth Islands SPA. Research opportunities Much of the assessment and mitigation proposed for the River Teith SAC, particularly in relation to issues such as the effects of noise and vibration on fish species in an estuarine environment, is based on fairly limited data sets. The monitoring required in relation to the proposed operations could add considerably to our knowledge of such issues and we therefore recommend that opportunities are explored to contribute to ongoing and upcoming research. 4. Firth of Forth SPA (and Ramsar site) The appraisal we carried out considered the impact of the proposals on the following factors and how they might relate to the bird species: Disturbance (temporary / permanent disturbance to breeding, foraging and roosting sites, displacement, as a barrier to movements, etc.) Habitat Modification (temporary and permanent loss, alteration to hydrology, pollution) Habitat Severance Collision mortality or injury Construction methods and timing. In our view this proposal is likely to have a significant effect on the qualifying interest(s) of the site. As a consequence Scottish Ministers are required to undertake an appropriate assessment in view of the site s conservation objectives for its qualifying interest(s). To help this process, we would further advise that, in our view, based on the Report to Inform the Appropriate Assessment on the Firth of SPA (November 2009) and our appraisal carried out to date, if the proposal is undertaken strictly in accordance with the ES with the following modifications, then the proposal will not adversely affect the integrity of the site. Construction activity in relation to work at Long Craig and Port Edgar does not occur simultaneously. Strict details on construction lighting are included within the Construction

20 Management Plan. The employment of Environmental Clerk of Work(s) (ECOW) to oversee the construction activities in an independent manner and to halt works which are not in strict compliance with either the appropriate assessment or Environmental Management Plan. The timetable as it stands is quite tight and there does appear to be scope for mitigation being compromised, based on the general dates, e.g. work on the three towers could overlap leading to work affecting Long Craig and Port Edgar at the same time. Whilst it is difficult to be certain of timetables at this point in the process these should be clarified prior to construction commencing to ensure that mitigation is not compromised. 4.1 Additional issues to be considered in relation to the Firth of Forth SPA Table 2 doesn t list great crested grebe as an assemblage qualifier. There is reference in of possible change to the construction site location in the fields on the southern shore which could impact the curlew roost there. It is the most likely alternative roost for curlews which may be displaced by the building of the southern trestle. Loss of both roosts, given curlews known roost fidelity and the numbers of birds involved, is therefore likely to have a significant effect on a qualifying interest of the site. If this was proposed as a change to the Scheme a further appropriate assessment may be therefore be required. 5. Forth Islands and Imperial Dock Loch, Leith SPAs The appraisal we carried out considered the impact of the proposals on the following factors and how they might relate to the bird species: Disturbance (temporary / permanent disturbance to breeding, foraging and roosting sites, displacement, as a barrier to movements, etc.) Habitat Modification (temporary and permanent loss, alteration to hydrology, pollution) Habitat Severance Collision mortality or injury Construction methods and timing. In our view this proposal is likely to have a significant effect on the qualifying interest(s) of the site. As a consequence Scottish Ministers are required to undertake an appropriate assessment in view of the site s conservation objectives for its qualifying interest(s). To help this process, we would further advise that, in our view, based on the Report to Inform the Appropriate Assessment on the Forth Islands and Imperial Dock Lock, Leith SPAs (November 2009) and our appraisal carried out to date, if the proposal is undertaken strictly in accordance with the ES with the following

21 modifications, then the proposal will not adversely affect the integrity of the site. Construction activity in relation to work at Long Craig and Port Edgar does not occur simultaneously. Strict details on construction lighting are included within the Construction Management Plan. The employment of Environmental Clerk of Work(s) to oversee the construction activities in an independent manner and to halt works which are not in strict compliance with either the appropriate assessment or Environmental Management Plan. 5.1 Additional issues to be considered in relation to the Forth Islands SPA Reference is still made to the proposed marine extensions - these have now been classified by Scottish Ministers. Section refers to the JNCC website for an up to date list of qualifying interests. A revised citation is now available. There appears to be a contradiction between table 51 (bottom of page 111) which states that there is no potential for adverse effects on the integrity of the SPA in the absence of mitigation (habitat modification resulting from pollution from operation of bridge), and table 52 (bottom of page 127) which says Yes to adverse effect on Forth Islands SPA (habitat modification resulting from pollution from operation of bridge). It was our understanding that this issue had been studied and it had been shown that there would be no adverse effects on site integrity from this source - this must be clarified.